INSTITUTE
FOR PEACE
AND DEMOCRACY
Суд по тяжким преступлениям АР вынес приговор Лейле и Арифу Юнус

The analysis of the law violations at the trial versus Leyla and Arif Yunusov

The Baku  Grave Crimes Court


Criminal case no.1(101)-819/2015

August 13, 2015
Chairman: Afgan Hajiyev
Judges: Rasim Sadikhov, Fikrat Garibov

Prosecutor: Farid Naghiyev
Accused: Leyla Yunus, Arif Yunus
Defenders: Ramiz Mammadov, Elchin Gambarov, Afgan Mammadov, Elchin Sadighov
Victim’s representative: Shohrat Allahmanov

On April 19, 2014, a journalist Rauf Mirgardirov was deported from Turkey. He was involved in the criminal case as a suspect. On April 21, 2014 he was charged with committing a crime under Article 274 (Treason against the state) of the Criminal Code of the Republic of Azerbaijan. On April 28, 2014, approximately at 11 p.m., Leyla and Arif Yunusov were detained at the Heydar Aliyev International Airport. Around at 6 a.m. they were brought to the Grave Crimes Department of the General Prosecutor’s Office and interrogated as witnesses in Rauf Mirgardirov’s case.
On July 30, 2014, Leyla Yunusova was charged with committing crimes under Article 274 (Treason against the state), and on June 22, 2015, she was charged again with crimes under Articles 178.3.2. (Fraud in a particularly large amount), 192.2.2.(Illegal business with the extraction of income in a large amount), 213.2.2.(Evasion from paying taxes in a large amount), 320.1.(Forgery, illegal manufacture or sale of official documents, state awards, seals, stamps, and forms or use of forged documents), 320.2.(Use of forged documents). On the same day, by order of the Nasimi District Court, a measure of restraint in the form of detention was imposed against L.Yunusova. On October 24, 2014 and on February 18, 2015, her detention was extended until July 28, 2015.
On July 30, 2014, Arif Yunusov was brought on trial as a defendant under Articles 274 and 178.3.2. of the Criminal Code of the Republic of Azerbaijan. With respect to him, a measure of restraint in the form of transfer to the supervision of the police was chosen. On August 5, 2014, this measure of restraint was changed to imprisonment. By the decisions of the Nasimi District Court of October 29, 2014 and February 23, 2015, the term of detention was extended until August 5, 2015. On June 22, 2015 A.Yunusov was charged under Article 178.3.2. of the Criminal Code of the Republic of Azerbaijan.
The trial of the married couple Yunusov began on July 15, 2015. The couple was placed in a glass aquarium. Opposite the aquarium was a table, behind which sat lawyers, the prosecutor and the representative of the organization Women of Azerbaijan for Peace and Democracy in Transcaucasia, recognized by the investigative body as the injured party. At the preparatory meeting, the lawyers appealed to the court with petitions for the termination of the criminal case, changing the measures of restraint in view of the state of health of both accused. They also asked the court to allow the accused to move from the glass aquarium to the table where lawyers were located for effective consultations. The prosecutor, expressing his opinion, said that these applications are unreasonable and should be rejected by the court. He also pointed out that lawyers have the opportunity to approach the aquarium and advise their clients without any restrictions. The representative of the injured party expressed solidarity with the prosecutor and asked the court to reject the petitions. When the judges retired to the meeting, Leyla Yunusova appealed to the representatives of the press and embassies present. She reported that on September 11, 2014, December 23, 2014 and May 20, 2015, while in the Baku Investigative Isolation Ward, she was beaten by the employees of the isolation ward. As a result, her left eye became to see hard.
Returning from the advisory room, the judicial board announced the decision concerning the petitions submitted. All defence pleas were rejected.
The trial continued on July 27, 2015. The defence filed an application to remove from the case a Rena Safaraliyeva’s representative who was recognized a victim. Arif Yunusov's lawyer appealed to the court with another petition to change the measure of restraint against his client. However, the court rejected both of these motions. Then the court proceeded to a judicial investigation, and the prosecutor read out the indictment in the criminal case. Leyla and Arif Yunusov  refused to testify.
On July 27, Rena Safaraliyeva, speaking at the trial, stated that she had not been the chairman of the Society practically for more than 10 years.
At the court session on July 28, 2015, the witnesses of the case began to be questioned. The trial was held in a semi-closed mode, as representatives of the public, politicians and activists, journalists and observers from international organizations were deprived of the opportunity to attend the court session. Those who remained outside the courtroom protested to the court staff and stated that the openness of court session was violated. At the beginning of the meeting Leyla Yunusova stated that the hall was filled with unauthorized persons (most likely by law enforcement officers) who had nothing to do with the accused. Among the interrogated was the journalist Rauf Mirgadirov, arrested in this case, who is charged with Article 274 (Treason against the state) of the Criminal Code. Adila Manafova interrogated in court as a witness, was one of the co-founders of Women of Azerbaijan for Peace and Democracy in Transcaucasia organization. She showed that Leyla Yunusova was deputy chairman of the organization and was engaged in the resolution of the Karabakh issue. The Armenian side was wary of her arguments and could not imagine anything as a counterbalance. At this point, the prosecutor intervened in the testimony of the witness and said that this had nothing to do with the case.
The next meeting was scheduled for August 3, 2015. On this day, before the beginning of the process, Arif Yunusov's health deteriorated sharply. The pressure increased to 220/160. But, despite this, before the ambulance arrived, he, along with Leyla Yunusova, were in the glass aquarium. All those gathered around the courthouse were informed about the postponement of the meeting for another day, but the process continued soon.
The trial continued on August 4, 2015, where witnesses, journalists Anna Bartulashvili and Akbar Hasanov, chairman of the Oilmen’s Rights Protection Committee Mirvari Gahramanli, were questioned, and the testimony of the chairman of the Women's Crisis Centre, Matanat Azizova, was read out.
At the court session on August 5, 2015, the court conducted an analysis of the materials of the criminal case. Arif Yunusov's lawyer, Afgan Mammadov, filed a petition with the court to challenge the judicial board and demanded the replacement of judges. However, the public prosecutor called this application groundless from a legal point of view and asked the court to dismiss it. Then L.Yunusova’s lawyer Ramiz Mammadov applied for the court to annul the status of the head of the organization Women of Azerbaijan for Peace and Democracy in Transcaucasia Rena Safaraliyeva as a victim. He also submitted to court the book published by L.Yunusova at the expense of the grant from the Marshall Fund, and asked to attach it to the materials of the criminal case. In addition, the lawyer asked the court to invite a representative of the fund as a witness. He stated that the means under the grant of the Marshall Fund were spent on publishing this book. The fund did not have any complaints about this. The court partially accepted this petition and attached the book to the case materials. During the trial, L.Yunusova said that she cannot participate on a daily basis due to the state of health. However, the state prosecutor stated that L.Yunusova is under constant medical control and there are no problems with her bringing to court.
During the trial, Arif Yunusov was regularly injected by a doctor from the Ministry of National Security. Under the influence of these injections, Arif Yunusov was sleeping on the dock all the time, laying his head on his wife’s knees. He did not hear anything on the court at all.
On August 6, 2015, the judicial investigation was completed. The prosecutor, speaking with the accusatory speech, supported the state accusation, asked the court to convict the defendants of all the charges, and to sentence Leyla Yunusova to 11 years, and Arif  Yunusov  to 9 years in prison.
On August 13, 2015, the Baku Grave Crimes Court found Leyla and Arif Yunus guilty of committing the accusations and sentenced L.Yunusova to 8.5, and A.Yunusov to 7 years of imprisonment with confiscation of property.

Commentary by an expert lawyer:

The sentence is illegal, unreasonable, unfair and inhumane. The Criminal Code of the Republic of Azerbaijan contains a number of principles, according to which criminal prosecution and punishment must be conducted: the principle of legality, equality before the law, responsibility for guilt, justice, and finally, the principle of humanism.
The findings of the court are recognized as not in accordance with the facts of the case, if:
·     The conclusions of the court of first instance reflected in the verdict or resolution are not supported by the evidences examined in the court session (Article 401.2.1 of the Code of Criminal Procedure);
·     The court of first instance did not take into account the evidences examined in the court session, which significantly influenced the correctness of its conclusions (Article 401.2.2 of the Code of Criminal Procedure);
·     Insufficient clarity of information about the identity of the convicted or acquitted, against whom compulsory measures of an educational or medical nature are applied (Article 400.2.3 of the Code of Criminal Procedure);
·     Circumstances that are essential for the consideration of the charge are not confirmed in the verdict or the decision of the court of first instance with the evidence specified in the law (Article 402.0.1., CCP).

The charge for fraud in a particularly large amount

It should be noted that all projects on grants were prepared and executed by L.Yunusova. The organization Women of Azerbaijan for Peace and Democracy in Transcaucasia did not have any rights of property and disposal for grants received. Donor organizations accepted reports, they had no claims and complaints about Leila and Arif Yunusov, as well as about the organization Women of Azerbaijan for Peace and Democracy in Transcaucasia.
The Power of Attorney for Shohrat Allahmanov, who participated in the court, was issued not by the organization Women of Azerbaijan for Peace and Democracy in Transcaucasia, but personally by Rena Safaraliyeva, who had not managed the organization for a long time. The organization was liquidated in May 2014. In the court R.Safalaliyeva stated that she had not suffered any material damage from L.Yunusova. If there is no material damage, the crime under article 178 of the Criminal Code is not formed. If a charge for fraud is filed, then a source of money must be found. In this case, the funds are the funds of donor organizations, which, moreover, do not have any complaints and claims against the accused.

Charge of illegal entrepreneurship

One of the charges against Leyla Yunusova is the charge provided for in Article 192.1. of the Criminal Code of the Republic of Azerbaijan. According to this article, illegal entrepreneurship is the implementation of entrepreneurial activity without state registration in the manner prescribed by the legislation of the Republic of Azerbaijan, or without special permission (license) in cases when such permission (license) is mandatory, or with violation of licensing terms or using subjects without special permission, civil circulation of which is limited, if this act caused large damage to citizens, organizations or the state, and to obtain a yield to a considerable extent.
The concept of ‘illegal entrepreneurship’ is also given in the Civil Code and Entrepreneurial Activity Act: ‘Entrepreneurial 4activity (entrepreneurship) is an independent initiative activity of individuals, their associations, as well as legal entities for profit or personal income, in the form of all types of economic activities not prohibited by law, including production, marketing of products and rendering services at their own risk and under their property responsibility or on behalf of other legal entities or individuals.’
If we summarize the content of the charges, we can come to the conclusion that, according to the accusation, Leyla Yunusova carried out projects without state registration, which is prohibited by law.
In this regard, it should be noted that, in accordance with Article 1 of the Grants Act, the grant is assistance provided in the manner prescribed by this Act for the preparation and implementation of humanitarian, social and environmental projects, rehabilitation of destroyed facilities and infrastructure of industrial and social appointment in the territories affected by the war and natural disaster, programs in the fields of education, health, culture, consulting, information, publishing and sports, scientific, research, project, and other programs important for the state and society.

Paragraph 3 of this article states that material assistance used for direct profit extraction is not recognize as a grant. Any financial and/or other material resources remaining at grantee’s disposal after the completion of the project constituting the subject of the grant, unless otherwise provided by the grant agreement (resolution), at the discretion of that person, should be spent on the implementation of projects and programs, which may be the subject of the grant.

Apparently, the state registration of grant contracts does not affect their essence and does not change it. The concept of ‘entrepreneurship, as indicated above, consists of completely different signs. The state registration of grant of contracts is only an administrative action.

The accusation of tax evasion

According to Article 1 of the Agreement on Cooperation between the Governments of the Republic of Azerbaijan and the United States of America on Simplification of Mutual Assistance, goods, stationery, equipment, materials, machinery, specialized courses, services and other property acquired in connection with the United States assistance program, including money imported or exported to the country, are exempt from all kinds of taxes, property tax rates, customs duties, import taxes. On the legal essence, grant contract is assistance.

Violation of the European Convention for the Protection of Human Rights and Fundamental Freedoms

According to Article 3 of the European Convention, no one shall be subjected to torture or to inhuman or degrading treatment or punishment. 60-year-old spouses, suffering from numerous chronic diseases, daily, at the hottest time of the year, were brought to court in a closed, iron car. Practically every meeting began with the deterioration of the health of the spouses, in particular Arif Yunus. Leyla Yunus noticeably lost weight, her complexion was yellow, excessive sweating due to weakness was observed. According to the basic principles of the European Penitentiary Rules, life in places of deprivation of liberty should be as close as possible to positive aspects of life in society. Paragraph 32 (2) of the Rules stipulates that the transportation of prisoners in insufficiently ventilated and illuminated vehicles, or in conditions creating unnecessary inconveniences for them or insulting their dignity. The Rules contain a separate chapter on female prisoners. According to paragraph 34 (1) of the Rules, in addition to complying with the provisions of these Rules directly relating to female prisoners, the administration must pay attention to the needs of women, in particular their physical, professional, social and psychological needs in making any decisions that affect certain aspects of their imprisonment.
The administration of penitentiary institutions ensures the health protection of all prisoners of these institutions (Paragraph 39 of the Rules). Each penitentiary institution must have at least one appropriately qualified general practitioner. In a particular case, the examination is limited to taking blood. No proper treatment of L.Yunusova is carried out. In addition, there are serious contradictions in the findings of the local doctor, examining L.Yunusova, and his German counterpart. The opinion of local doctors indicates the absence of any serious illness in L.Yunusova, while the German doctor's conclusion mentions hepatitis C and a number of other serious diseases that cannot be effectively treated in penitentiary settings. In addition, there are no specialized doctors in the penitentiary service hospital.
According to paragraph 46 (1) of the Rules, sick prisoners requiring specialized treatment are transferred to specialized institutions or civil hospitals, if such treatment is impossible in the penitentiary institution.
In addition to the foregoing, L.Yunusova repeatedly declared physical violence against her in the course of the judicial investigation. This information was widely covered in the local and international press. However, the court did not take into account these statements and did not properly investigate these statements.
Arif Yunusov was brought to court in handcuffs, which were removed after he was placed in the glass aquarium. According to the Rules, handcuffs, straitjackets and other means of restraint of movement are not applied, except if necessary in case of prisoner escaping and if a prisoner can injure himself, others, or to prevent property damage. These cases are not applicable to Arif Yunusov  because the prisoner suffers from a severe form of hypertension and repeatedly suffered a hypertensive crisis in prison. Detention with imprisonment is a punishment in itself, and therefore, the regime for convicted prisoners should not exacerbate the suffering associated with imprisonment (paragraph 102 (2) of the Rules).
Article 5 (1) of the European Convention was also violated in respect of the Yunus spouses. According to this article (paragraph (c)), everyone has the right to freedom and personal inviolability. No one can be deprived of liberty except in the following cases and in the manner prescribed by law: (c) the lawful detention or taking into custody of a person, to make him/her appear before the competent authority on reasonable suspicion of committing an offense or in the event that there are sufficient grounds to believe that it is necessary to prevent the commission of an offense or to prevent him/her from escaping after the commission of an offense. In accordance with the precedents of the European Court of Human Rights, the right to liberty and inviolability of person is one of the fundamental rights provided for in the Convention. With regard to the Yunusovs' spouses, a decision was adopted to select a measure of restraint in the form of detention, the term of which was repeatedly extended. In addition, at first, a measure of restraint was chosen with respect to ArifYunusov that was not related to arrest, namely, transfer to police supervision. Subsequently this measure of restraint was changed to arrest. The decisions contained general, abstract concepts used in the criminal procedure legislation. According to the judgment of the European Court in the Smirnov v. Russia case of July 24, 2003, a person charged with an offense must always be released pending trial, except in cases where a state can produce ‘relevant and sufficient’ grounds to justify prolonged detention (paragraph 58). In this case, the decisions on the selection of the measure of restraint and the time of its extension were of a general nature. Courts did not approach this issue individually, did not take into account the person, age, professional activity and health of the accused.
In addition to the above-mentioned norms of the Convention, there is obviously a violation of Article 6(1) (The principle of publicity). Article 6(1) reads: ‘Everyone is entitled to a fair and public hearing in the determination of civil rights and obligations or of any criminal charge against him/her within a reasonable time by an independent and impartial tribunal established by law. The judgment is announced publicly, however, the press and the public may not be admitted to court sessions throughout the whole process or part thereof for reasons of morality, public order or national security in a democratic society, and when the interests of minors so require or to protect the privacy of the parties, or, in so far as it is strictly necessary in the opinion of the court, under special circumstances, when publicity would violate the interests of justice.’In this case, the principle of publicity was violated especially vividly. Representatives of the public and the media (Azadlig Radio, BBC, Voice of America, Azadlig newspapers, etc.) were not allowed into the meeting hall. The hall was filled with strangers who entered through another door. The doors of the reception room, through which the entrance to the meeting hall was located, were locked up, which caused indignation and discontent of those wishing to attend the trial. In addition, the court supervisors behaved extremely disrespectfully and rudely against visitors and used physical force more than once.
The European Court repeatedly stated in its decisions that ‘the purpose of publicity of the trial is to protect the parties involved in the case from the secret administration of justice. This is one of the ways to ensure trust in the courts of the lower and higher levels. At a minimum, in some cases, a refusal of a public hearing is permissible, provided that the refusal proceeds from the interested person according to his/her own free will, without exerting pressure on him/her, and in an unambiguous form. The requirement that a judgment be pronounced publicly is not conditioned by any implied limitations and acts even in the case of a closed nature of the hearing itself.’ Despite the norms of domestic and international law, which also enshrined the principle of publicity, the trial of the couple Yunus and the announcement of the verdict was held in a semi-closed regime.
It follows from the foregoing that the investigation in the criminal case was conducted one-sidedly, superficially and biased, and the court of first instance rendered the verdict, having taken into account only the arguments of the prosecution, the arguments and reasons of the defense were not investigated.
Baku Grave Crimes Court pronounced the verdict for
Leyla and Arif Yunusov